FILING FOR DIVORCE

Preparation and Filing  |  Service  |  Temporary Orders  |  Answer  |  Discovery
Preparation and Filing
A divorce complaint may be filed by both parties by filling in the information requested on the court's joint petition or by one party filling in the information requested on the court's Complaint for Divorce.

The attorney representing the party who petitions will fill in the information and file it with the Probate and Family Court in the proper county, along with:

• a certified copy of the marriage certificate,
  
• the filing fee,
  
• affidavit Disclosing Care and Custody, if there are any minor children,
  
• 408 Statistical form,
  
• affidavits of Irretrievable Breakdown of Marriage with joint petitions (for joint petitions only),
  
• signed agreement by both parties, with joint petitions (for joint petitions only).

The county Probate and Family Court where the complaint is filed is governed by statute. Once it is determined that Massachusetts has jurisdiction, MGL. C.208 Section 6 allows for divorce actions to be filed in the Probate Court in the county where one of the parties lives, except that if either party still resides in the county where the parties last lived together, the action shall be heard and determined in a court for that county.

All papers filed in the divorce action shall be done by mailing or by hand delivering the papers to the main county court house (not the satellite courts).

• Middlesex County - 208 Cambridge Street, Cambridge
  
• Worcester County - Worcester Probate and Family Court
  
• Suffolk County - Edward W. Brooke Courthouse at 24 New Chardon St., Boston
  
• Essex County - Salem
  
• Norfolk County - 35 Shawmut Road, Canton

The divorce and any motions may be heard at the satellite locations, but the filings take place at the main courthouses. Arrangements for hearings at the satellite locations are made through the main courthouse and hearings are set according to the assigned Judge's schedule.

Service
Once the divorce complaint is filed, the court has taken jurisdiction over the divorce issues, but a complaint must be served in order for the court to have authority over the parties.

"Service" is made by delivering a copy of the complaint and a summons to the other party. The delivery may be done by a constable, a sheriff, or any person duly authorized by the law or appointed by the court.

Service need not be done when a joint petition is filed, since both parties are jointly petitioning the court to allow the divorce pursuant to the terms of an agreement, signed by both parties.

As an alternative to being served, a defendant may accept service of the summons by signing it as accepting service in front of a notary public.

If a defendant cannot be located, the court will provide for service to be made by publication in a specified newspaper.

Once the complaint for divorce is served or accepted by the defendant, an automatic restraining order prohibiting the transferring or encumbering of assets comes into being. The parties are also prohibited from making any changes to any named beneficiaries.

Subpoenas must also be served by an authorized person or accepted by the recipient.

Notices of certain hearings may be delivered by mail in accordance with the Rules of Domestic Relations.

Temporary Orders
During the pendency of a contested divorce, the need may arise for certain assurances of support to meet the needs of one of the parties and/or minor children, custody/parenting plan arrangements, and other provisions. The court allows for certain temporary orders to issue during the pendency of divorce.

Temporary orders may be for:

• child support
  
• alimony
  
• custody
  
• visitation
  
• advancement of money to pay attorney's fees
  
• sole use of the marital home
  
• appointment of a Guardian ad litem to investigate issues of custody and visitation

A Temporary Order is initiated by a party filing a motion with the court requesting that a Temporary Order issue. The party seeking the order must state his/her reasons for the request and must file a proposed order with the motion. The party may include an affidavit to support the motion. A copy of all papers filed with the court (motion, proposed order and affidavit) must be served on the other party together with a notice of when the hearing for the Temporary Order will take place and the location of the court. This notice must be served ten (10) days by mail and seven (7) days in person before the scheduled court hearing. Emergency matters may be heard by the court only after the party seeks and receives court permission to shorten the notice time requirements. The party seeking an emergency motion must supply an affidavit for proof that an emergency exists.

Arrangements for motion dates are made with the main courthouse. The court will assign the date and place in accordance with the assigned Judge's schedule.

The other party is entitled to respond to the Motion by way of affidavit filed and served on the other party two (2) days before the hearing.

It is important to be prepared to argue your position at the hearing for Temporary Orders, as any Temporary Order issued by the court is binding on the parties until further order or judgment is made by the court. Sometimes a "temporary" order remains in effect for a year or more while the divorce case is still pending.

Answer
Once a defendant receives or accepts service of the divorce Complaint, he/she has twenty (20) days to file any Answer, Counterclaim, or other responsive pleading.

The defendant's Answer may admit or deny what the plaintiff alleges in his/her Complaint, and may make further answer by setting forth defenses and/or Counterclaim/Cross Complaints.

Discovery
Supplemental Probate Rule 410 provides for mandatory discovery of certain documents by both parties in all cases where support is an issue. This rule requires that both parties exchange with one another the following documents within forty-five (45) days from the date of the service of the summons:

• parties' federal and state income tax returns and schedules for the past three (3) years and corporate returns for non-public corporations in which a party had interest together with W-2's, 1099's, K-1 and schedules C and E,
• statements for the past three (3) years for all bank accounts held by a party individually or jointly with another or in the name of another person for the benefit of either party or held by a party for the benefit of another,
• the four (4) most recent paystubs from each employer,
• documents regarding the cost and nature of available health insurance coverage,
• statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor children, 401K statements, IRA statements and pension plan statements for all accounts listed on the financial statement,
• copies of any loan or mortgage application made, prepared or submitted by either party within the last three (3) years,
• copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years.

The parties are required to make reasonable efforts to obtain copies of these documents, and have a continuing duty to supplement them.

Oftentimes, a party may need additional information and/or documents in order to properly assess what a proper division of assets or what a proper child support order should be. In that event, there are several methods by which that party may obtain information and/or documents. For example:

• by subpoena served on a bank, seeking copies of canceled checks, or served on an employer, seeking employment records,
• by requesting a party produce certain documents,
• by subpoena served on a party to appear for a deposition during which a series of questions and answers may be made and recorded by a stenographer,
• by written questions (Interrogatories) addressed to a party or to an expert witness, to be answered within a certain period of time.

Working with an attorney, the party may help decide which discovery tool to employ to obtain the most satisfactory results. The parties may decide with their attorneys to informally produce documents and information to expedite the process.